07.08.18
Posted in America, Apple, Patents, Samsung at 2:05 pm by Dr. Roy Schestowitz
Zeroclick, Uniloc, VirnetX, AVRS and many others can cost Apple billions in legal bills and settlements
Summary: It might be time for Apple to rethink its legal strategy; patents are costing the company a great deal of money and have yielded almost nothing for the company’s bottom line (unlike the company’s lawyers, perpetrators of this misguided strategy)
THE SUMMER HOLIDAYS are in full swing and many staff (e.g. EPO and USPTO examiners) likely enjoy a long break right now. In fact, journalists too slowed down; some are away. But it’s never a suitable time for them to stop the Apple hype. Whenever there’s some patent case involving Apple the corporate media suddenly bothers covering patent news (it otherwise doesn’t care because people don’t click on stories unless there’s some famous brand in the headline).
“Whenever there’s some patent case involving Apple the corporate media suddenly bothers covering patent news (it otherwise doesn’t care because people don’t click on stories unless there’s some famous brand in the headline).”This is a short roundup of Apple in patent news. This is far from the first time we point out the exceptional emphasis on Apple; we last mentioned it a few weeks (or 10 days) ago.
Chris Stokel-Walker’s article, “Forget Apple vs Samsung, an even bigger patent war has just begun,” is citing Florian Müller for the most part. Müller is correct and here’s the core thesis:
A tech giant like Samsung, Apple or IBM can register up to 5,000 patents every year – with engineers writing them “at a furious rate”, says Horace Dediu of Asymco, a mobile phone analyst. “IBM does this seriously. They just amass a huge arsenal of patents.” Apple alone has more than 75,000 patents and filed for over 2,200 more since the beginning of 2017. Samsung has filed for more than 10,000 patents in the last 18 months and in total has 1.2 million of them.
“My personal opinion is that this absolutely exorbitant number of patents you find in a phone shows that the hurdle for obtaining a patent is too low,” says Mueller. There should be more substantial investment behind every patent.
Crucially though, patents aren’t just important for protecting people’s inventions: they’re also a money-making tool. “Patents are one of these currencies that is always traded,” explains Dediu – or sold.
They are a tool used against opponents in a highly competitive industry. “If you have a patent, you can stop someone else shipping a product that contains that intellectual property,” says Dediu. “Generally, the rights are entirely held by the patent owner and those rights mean that an infringing product must be withdrawn from the market.”
The malicious use of patents to prevent competition rarely happens, but the sheer scale of the number of patents can stifle innovation. Mueller calls it a “patent thicket”. Companies can develop a new device or a new technology, then find themselves undone. “You inevitably – because there are so many of them – will be found to have infringed a patent,” he says. “That is a real problem for the industry.”
It’s not only Müller who calls it a “patent thicket”; it’s a widely-accepted legal term, albeit with the negative connotation it deserves, just like “patent tax”, “patent troll”, “royalty stacking” and so on. Euphemisms typically contain spurious and misleading words like “fair”, “reasonable” and “nondiscriminatory” (that’s FRAND). Either way, Apple is very aggressive with patents, but nowhere as aggressive as IBM and unlike IBM it also finds itself on the receiving end of a lot of lawsuits, including troll lawsuits (preying on the big ‘wallet’). This is why we habitually encourage Apple to join us in the fight against — not for — software patents. It certainly seems like quite a lot of software patents are being used against Apple, costing it billions of dollars in total.
“It’s not only Müller who calls it a “patent thicket”; it’s a widely-accepted legal term, albeit with the negative connotation it deserves, just like “patent tax”, “patent troll”, “royalty stacking” and so on.”The latest in Uniloc USA, Inc. et al v Apple Inc., as per Docket Navigator, is that “[t]he court granted defendant’s [Apple's] motion to strike plaintiff’s infringement contentions because plaintiff failed to sufficiently identify the accused instrumentalities.”
Uniloc is a major patent troll, just like VirnetX, which also preys on Apple and wants hundreds of millions of dollars.
In a Mac/Apple-oriented site, Joe Rossignol spoke of AVRS, which is not a classic patent troll but mostly software patents without an actual complete product, only litigation and “portfolio” (of patents). To quote Rossignol:
Arizona-based speech recognition technology company AVRS, short for Advanced Voice Recognition Systems, Inc., has filed a lawsuit against Apple this week, accusing the iPhone maker of infringing on one of its patents with its virtual assistant Siri, according to court documents obtained by MacRumors.
Those are software patents and the Patent Trial and Appeal Board (PTAB), if an inter partes review (IPR) was pursued, would likely cause them to perish. A few days ago a new example of this (patents on “Phonetic Symbol System”) was dealt with by the Federal Circuit (CAFC). “In a non-precedential decision,” Patently-O admitted, “the Federal Circuit has rejected George Wang’s pro se appeal — affirming the PTAB judgment that Wang’s claimed phonetic symbol system lacks eligibility under Section 101.”
“It certainly seems like quite a lot of software patents are being used against Apple, costing it billions of dollars in total.”Well, obviously. The patent system has become almost self-satirising and sites of patent maximalists are still cherry-picking slightly older (June) CAFC cases where mere dissent — not eventual judgment — gives hope to these maximalists.
And speaking of maximalists, the case of Zeroclick against Apple was brought up again at the end of last month. Patent Docs‘ patent maximalist Michael Borella belatedly catches up with Zeroclick, LLC v Apple Inc. (we have already mentioned Zeroclick in [1, 2, 3]), noting that “it is not uncommon for software inventions to be claimed as methods” (that’s purely semantics). To quote the details, which deal with § 112 rather than § 101:
Most software inventions are functional in nature. The focus is not on what the invention is so much as what it does. The same physical hardware can be programmed by way of software to carry out an infinite number of different operations. Thus, it is not uncommon for software inventions to be claimed as methods. But when such inventions are claimed from the point of view of hardware carrying out a method, the patentee runs the risk of the claims being interpreted under 35 U.S.C § 112(f) (pre-AIA § 112 paragraph 6) as being in “means-plus-function” form. This, of course, can effectively narrow the scope of the claims to embodiments disclosed in the specification and equivalents thereof. Also, such claims can be found invalid if the specification does not disclose sufficient structure to support the embodiments.
[...]
“First, the mere fact that the disputed limitations incorporate functional language does not automatically convert the words into means for performing such functions.” Notably, many structural components or devices are named after the functions they perform.
“Second, the court’s analysis removed the terms from their context, which otherwise strongly suggests the plain and ordinary meaning of the terms.” Particularly, the terms “program” and “user interface code” were not used in the claim as nonce terms, but instead refer to “conventional graphical user interface programs or code, existing in prior art at the time of the inventions.” And as explained in the specifications, the claimed invention was an improvement to such interfaces and code.
“Third, and relatedly, the district court made no pertinent finding that compels the conclusion that a conventional graphical user interface program or code is used in common parlance as substitute for ‘means.’” The Federal Circuit suggested that use of a broader term, such as “module”, in place of “program” and “user interface code” would have likely have invoked § 112(f).
For these reasons, the Federal Circuit reversed the District Court and remanded the case for further proceedings.
Patents on graphical user interfaces don’t relate to § 101, as we noted earlier this year (on numerous occasions even), but they oughtn’t be granted because copyrights and trademarks already cover appearances. If Apple fought against patent maximalism, many of these nuisance lawsuits would likely stop.
The patent trolls’ lobby, IAM, expectedly worries that Qualcomm might lose key patents. And why? Because Apple does in fact reach out to PTAB, reaffirming the idea that technology companies need and support PTAB. IAM said that “the Apple v Qualcomm battle royale took on a new front in June as the iPhone giant turned to the Patent Trial and Appeal Board (PTAB) to try to invalidate several of its rival’s patents. It is the first time that Qualcomm, widely seen to have one of the more valuable patent portfolios in the mobile and semiconductor sectors, has seen its grants challenged at the PTAB and should Apple start successfully knocking out some of its adversary’s patent claims it would give the tech giant some helpful leverage in a dispute…”
“If Apple fought against patent maximalism, many of these nuisance lawsuits would likely stop.”Similar things have happened in Europe, as we covered here earlier this year. Will patent maximalists soon start demonising Apple too, calling it “anti-patent”? Well, the PTAB-bashing Watchtroll again covers news from 3 weeks ago, adding nothing new except its pro-patent trolls slant (“Apple Brings Patent Battle Against Qualcomm to PTAB With Six IPR Petitions on Four Patents”), having covered another Apple story with this propaganda headline. The said case showed that only lawyers win in patent disputes, but here they go saying that 7 years of fighting is actually “Proving Patent Litigation Doesn’t Hinder Consumer Access” (the term “consumer” is an insulting word for customer and features were actually removed from these phones as a result of the fighting, directly harming customers). Had Steve Jobs never declared a patent war on Android, Apple would likely be in the same position that it’s in right now, albeit with fewer lawyers, not many legal bills, and without negative press coverage (berating it for patent aggression). █
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Posted in Europe, Patents at 9:54 am by Dr. Roy Schestowitz
Now that he’s officially out more people can spill the beans
Summary: The efforts to shed light on what Battistelli did when he was in charge of the European Patent Office (both told and untold stories)
THE EPO has lost the psychopath in chief, but that does not mean that spilling the beans is an old thing which must end. We have not yet seen António Campinos distancing himself from Battistelli, even if Battistelli must begrudgingly distance himself from his 'palace'.
“Let’s set the record (history) straight. Battistelli’s ability to chase or punish sources is greatly diminished now.”Looking back, we’re far from done. Further EPO leaks are expected and would be greatly appreciated/welcomed. Now more than ever. For instance, we welcome leaks about old things (things that happened even years ago) that our audience knew but could not share/tell. Let’s set the record (history) straight. Battistelli’s ability to chase or punish sources is greatly diminished now.
One reader wrote to us today, reflecting not only on the past but also the future:
The dictator of the 10th floor vanished a week ago as dust in the desert. Exit Battistelli. We will remember Francesca and will forget Benoit. C’est la vie. I have never seen an happy ending for a dictator. I also would like to thank all contributors leaking crucial information. With this info we will make the ex-dictator and some friends accountable. Last but not least, before the Ex disappears our memories you may want to send him a farewell feedback to his email address as a deputy mayor in St Germain en Laye or even great him personally for his birthday an June 12th at his place in the Quartier des Ursulines.
“The dictator is gone,” I responded, “but the dictatorship is still there, so challenges remain ahead of us all.”
We need more leaks. We still need more information. Earlier this weekend I began sharing information publicly — information that I could not previously disclose for fear or retribution (against suspected sources). Among the things I wrote: “I can say that his [Battistelli's] staff, appointed by him (Team Battistelli), was (probably still is) so disgusting that examiners did not want to seat next them to them on planes” and “I can say that many of his workers hope he will die like his ‘mentor’ Lamy did. Suddenly, without warning, like a punishment from above.” (Cardiac)
People actually tell me this kind of stuff. Staff talks about it.
“Just because Battistelli is out doesn’t mean that the embarrassment to him is over. It just means he’s a lot less capable of responding to it, e.g. by punishing innocent people (or collective punishment).”I also wrote: “I can say that strong evidence exists that his people also covertly spy on former EPO staff (which I believe is illegal). Got more evidence? Get in touch with us…”
Also about Battistelli: “I can say that people even at top-level management (senior staff) at the EPO hate him…”
Working carefully and re-reading ~2,000 lines of unpublished drafts, I’m still trying to determine what is and isn’t safe to say (or in what form it’s safe enough to say it). We also have hundreds of unpublished EPO documents. Just because Battistelli is out doesn’t mean that the embarrassment to him is over. It just means he’s a lot less capable of responding to it, e.g. by punishing innocent people (or collective punishment). █
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Posted in Europe, Patents at 9:20 am by Dr. Roy Schestowitz
Battistelli not only undermined the UPC; he harmed the perception of justice in the EU/Europe
Summary: The far-reaching and deeply damaging impact of Battistelli (e.g. on the image of France, Europe, Dutch/German parliaments and ILO among others) means that the Unified Patent Court (UPC) is already in the ashtray of history along with his sponsored ‘studies’ that tell nothing but lies
Another nail in the UPC coffin was discovered and discussed over the weekend, e.g. [1, 2, 3]. Putting all their spin aside, a new British Government document says or speaks of “ending the jurisdiction of the CJEU in the UK, with no more preliminary references from UK courts…”
“The UPC is fundamentally dead for many reasons other than ‘Brexit’.”EPO scandals have contributed to the death of the UPC, even well before the so-called ‘Brexit’ referendum. And sure, there are now many additional barriers, including in countries like Spain, Hungary and Germany.
The vision of EPs becoming unitary ‘patents’ — or the Unified Patent Court (UPC) in general — is dead. Team UPC should just get over it and move on. As for British ratification, it was a meaningless publicity stunt. In 2016 Lucy said they’d ratify. She didn’t. Then came Jo (Jonhson). He said he would ratify. He couldn’t. Then came Sam, who needed a PR ploy on “World IP Day”. So they ‘ratified’… something which was inherently incompatible with ongoing processes. The UPC is fundamentally dead for many reasons other than ‘Brexit’. We didn’t need to (fore)see the unfortunate ‘Brexit’ travesty to know that.
“Only a crazy nation (or nation whose politicians are sufficiently corruptible) would let a court system be managed by a bunch that refuses to obey courts.”To us, ‘Brexit’ (which I personally oppose) wasn’t the main hurdle preventing the UPC from materialising. Battistelli’s abuses and hiring of thugs or criminals was enough. Later came further attacks on judges, unions, the law itself, and of course refusal to obey court orders. Only a crazy nation (or nation whose politicians are sufficiently corruptible) would let a court system be managed by a bunch that refuses to obey courts.
Put another way, the “B” which killed UPC wasn’t ‘Brexit’ but Battistelli. He ‘knifed’ his own baby like some biblical lunatic. █
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Posted in America, Patents at 8:21 am by Dr. Roy Schestowitz
Webinars reaffirm the longterm sustainability of PTAB
Mea culpa, patent purged
Summary: Efforts to thwart PTAB have been met with apathy from USPTO officials, who seem to recognise the value of quality assurance in this era of growing uncertainty about the validity of US patents
LAST WEEKEND Patent Docs advertised a July 17-18 event in which Ruschke, chief/head of the Patent Trial and Appeal Board (PTAB), is scheduled to give a talk. Not just any talk: “Keynote Address — The Honorable David Ruschke, Chief Judge, Patent Trial and Appeal Board, U.S. Patent and Trademark Office” (the one responsible for inter partes reviews (IPRs) that eliminate bad patents, wrongly granted by USPTO examiners). The real solution is to remove patents rather than removing the mechanism by which such patents get removed (what Battistelli did at the world’s most corrupt patent office).
Patent Docs then mentioned the meeting of Technology Center (TC) 2600, which takes place on the same day. It’s notorious among many patent maximalists for the same reason Ruschke is. To quote: “The Rocky Mountain Regional Office and Technology Center (TC) 2600 will be hoplding a combined Customer Partnership Meeting from 8:15 am to 3:00 pm (MT) on July 17, 2018 at the Rocky Mountain Regional Office in Denver, CO. TC 2600 examination for patent applications including Communications.”
Last but not least, there was this about IP5 from USPTO perspective:
Nelson Yang, Acting Director of International Patent Business Solutions in the Office of International Patent Cooperation of the U.S. Patent and Trademark Office, and Jocelyn Ram, Patent Business Analyst in the Office of International Patent Cooperation, will provide an overview of the Global Dossier concept and how the IP5 Offices (USPTO, EPO, JPO, KIPO, and SIPO) have been working together to provide additional services and functionalities. In particular, the new service, Citation List, will be highlighted to demonstrate its capabilities in prior art searching.
Well, prior art searching is crucial because without proper prior art searching patents will be granted in error, irrespective of how abstract they may be. The trend worth noting here is an effort to improve the quality of US patents — an effort last commended by John Thorne (HTIA) two weeks ago. He’s quoted as saying that “[t]he IPR process has been a necessary advancement for improving patent quality and creating stability to innovators threatened by invalid patents.”
This is what we should all strive for. Sadly, patent maximalists are fixated on this inane idea that Google is behind everything. HTIA fronts for many technology companies, not Google. The same is true for CCIA and EFF. But facts don’t matter to patent maximalists, for these facts merely interfere with their toxic agenda. We recently explained that 10 million US patents are far too much (most are likely bogus, but we’ll never know past their expiry). Bad quality of patents leads to presumption of invalidity — certainly a travesty for the perceived value of US patents. Here is what HTIA said about the 10 million patents mark:
On Wednesday, the U.S. Patent and Trademark Office (USPTO) marked the granting of the nation’s 10 millionth patent. Patent filings and issuances are at historically high levels, with more than 2.8 million active patents in the United States, which is both good and troubling news.
This plethora of patenting is the scorecard of a championship American season of innovation. But it has also given rise to challenges that could cut that season short. With the USPTO receiving more than 650K patent applications a year and issuing more than 350,000 patents a year based on an average examination time of 19 hours per patent, many invalid patents have been mixed in with the valid and valuable ones in recent years.
The most innovative tech products — smart phones, for example — can be covered by tens or hundreds of thousands of patents. It is almost a certainty that many of those patents are invalid, leading to a contamination of the innovation ecosystem. The danger underscores the value of recent reforms that are helping to clear the system of the USPTO’s mistakes.
We keep saying the same thing in relation to the EPO; if the house isn’t kept ‘in check’, EPs will lose their value, the number of applications will nosedive, and examiners will simply lose their jobs. Patent offices which get reduced/warped into patent-printing machines eventually stop printing. It’s like over-printing a currency — a very short-term strategy for sure. █
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Posted in America, Deception, Patents at 7:50 am by Dr. Roy Schestowitz
Summary: People who merely explain what’s in nature pretend to have just invented the wheel; discoveries are not inventions, however, especially discoveries of what has always been around; therefore patents are entirely misplaced in the domain, even if one calls that a “science”
THE TERM “Life Sciences” was always rather bizarre to me. It started to be used a lot more after I had completed my Ph.D., whereupon all sorts of departments around here started calling themselves “Life Science” (vague term), offered courses in “the Life Sciences”, job titles started to be renamed accordingly and so on. It’s not a synonym for biologist, geneticist etc. It’s just some nebulous new thing.
“It’s not a synonym for biologist, geneticist etc. It’s just some nebulous new thing.”What is a “Life Science” really? A science or an investigation of life itself? Or nature? Maybe reverse engineering? However one defines it (and definitions may change over time and de facto depend on common use), the term nowadays seems to be used quite abundantly to justify patents on things that do not merit them. It’s not medical, it’s not necessarily a science (I did my Ph.D. in “Medical Biophysics” by the way) and it often involves something that’s not invented, just privatised. Consider this new article titled “Ethiopia vs Europe: The Intellectual Property of an Ancient Grain, Teff” and another slightly older one from the same source: “Colombia: Reinstates Roundup Fumigations, This Time By Drone”.
Who ‘owns’ seeds? Who ‘owns’ animals? We don’t talk about individual seeds and animals but the very concept of them, or the DNA behind them. The EPO and the USPTO have both stepped in a puddle of insane patent maximalism, invoking at least the wrath of farmers in Europe, where Monsanto has come to ‘rename’ itself Bayer.
“Who ‘owns’ seeds? Who ‘owns’ animals? We don’t talk about individual seeds and animals but the very concept of them, or the DNA behind them.”6 days ago Kluwer Patent Blog wrote about “Edwards Lifesciences” (one word) and IAM, which promotes patent trolls, has just said (in its headline) that “HP moves into life sciences” (whatever that means).
Here they go again with “life sciences,” often a misnomer and excuse for patents on nature and life. “Life Sciences” is, in our experience, mostly a couple of buzzwords (two-word term) by which to promote patents on life itself. That’s a problem. Patent Docs, a site of patent maximalists, now has this thing called “PTAB Life Sciences Report”. The preface: “About the PTAB Life Sciences Report: Each month we will report on developments at the PTAB involving life sciences patents.”
“They basically call life itself (or nature) a “science” and thus make it sound acceptable to grant patents on life/nature.”Now they say “life sciences patents,” alluding quite likely to some vague concepts like patented genetics. The Patent Trial and Appeal Board (PTAB) rightly tackles many of these.
Patent examiners need to ask themselves whether that term, “life sciences patents,” means anything like “science patents”. They basically call life itself (or nature) a “science” and thus make it sound acceptable to grant patents on life/nature. █
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